Federal judge: Oklahoma’s ban on gay marriage is unconstitutional

posted at 6:41 pm on January 14, 2014 by Allahpundit

He’s a Clinton appointee but he’s been sitting on this case for, if you can believe it, nine years. Maybe that’s because he was waiting for the Supremes to tackle the issue or maybe he just didn’t want to touch it in a state as red as Oklahoma. Either way, the plaintiffs were unhappy. They’re happier today.

“The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,” U.S. District Court Judge Terence Kern wrote.

The ruling will not go into effect immediately, Kern decided, issuing a stay of his decision based on the recent Supreme Court action granting a stay in the case challenging Utah’s ban on same-sex couples’ marriages…

Human Rights Campaign president Chad Griffin praised the ruling in a statement, saying, “Judge Kern has come to the conclusion that so many have before him – that the fundamental equality of lesbian and gay couples is guaranteed by the United States Constitution. With last year’s historic victories at the Supreme Court guiding the way, it is clear that we are on a path to full and equal citizenship for all lesbian, gay, bisexual and transgender Americans.”

Here’s the opinion, which is standard as far as equal-protection analysis of gay marriage by federal judges goes these days. His first task was to decide what to do with SCOTUS’s ruling in the Windsor case last year, which found Section 3 of DOMA unconstitutional on equal-protection grounds. Should he find that Oklahoma’s traditional marriage law is unconstitutional for the same reason, or should he give the state more deference than the feds got from the Supreme Court with DOMA? Ultimately he decides on both: States, being the historic locus for marriage laws, get more deference, but that deference isn’t unlimited. If they want to discriminate against gay couples, they need to show some rational reason for doing so. “Moral disapproval” isn’t a rational reason per the Supreme Court’s ruling in Lawrence v. Texas, the landmark case from 2003 that declared Texas’s anti-sodomy law unconstitutional. The upshot of Lawrence is that you can’t legislate morality when you’re targeting intimate relationships between consenting adults. You can regulate those relationships if you have some other rational reason for doing so, but the state couldn’t produce one here: “Encouraging procreation” doesn’t fly if you’re not also excluding straight infertile couples from marriage and “encouraging mother/father households” doesn’t fly if you can’t show how banning gay marriage would actually encourage the formation of those households. As I say, all of this is S.O.P. for federal SSM jurisprudence lately. The only real novelty is that, between this ruling and the ruling in Utah last month, the new legal battlefield over gay marriage lies in America’s reddest states. That may be an extra inducement for SCOTUS to deal with this sooner rather than later.

Kern, the Oklahoma judge, seems to think he knows which way that’ll go too:

Anyway, you don’t want me blathering at you about law and gay marriage, especially when it’s another loss for social conservatism. What you want, via Ace, is … devil baby. Cleanse that palate.

The process used to shove this down the nation’s throat has to be the worst travesty in jurisprudence history. The precedents set will be used to wreak havoc on the will of the people, on a whole range of issues, for decades to come.

“The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,” U.S. District Court Judge Terence Kern wrote.

They’re called “normal couples”, douchebag.

Human Rights Campaign president Chad Griffin praised the ruling in a statement, saying, “Judge Kern has come to the conclusion that so many have before him – that the fundamental equality of lesbian and gay couples is guaranteed by the United States Constitution.

For his next move, Chad is going to take Nature to court for not allowing gay couples to have biological children. That “fundamental [in]equality” is clearly un-Constitutional. Nature is going to have to change its unfair ways or be banished from the American Socialist Superstate!

This will end up being not all that significant. If the Tenth Circuit rules in favor of the couples in Utah and SCOTUS doesn’t take the appeal then the Oklahoma ban was already toast because they’re also under the Tenth Circuit. If the Tenth rules in favor of the state of Utah and SCOTUS doesn’t take it then this ruling is going to be similarly overturned.

Lisa Bonchek Adams is currently hospitalized and being treated for Stage IV breast cancer. Since her diagnosis in October of 2012 at the age of 37, this mother of three has been blogging and tweeting about what she has been through mentally, personally, physically, and medically. For a chilling and revealing reason, former New York Times editor Bill Keller has a big problem with this.

First it was Keller’s wife Emma Keller … .

Mrs. Keller’s bizarre issues with Adams alone are not worthy of note, but it was when Keller’s husband, former New York Times editor Bill Keller, dove into the controversy that things got interesting.

On the pages of the Sunday Times Keller reveals a monstrous philosophy that in so many ways is revealing of the elite left as a whole — especially as it pertains to ObamaCare. In so many words, Keller just can’t bring himself to understand why Adams doesn’t give up her fight and die. In his mind, her death is inevitable and all she’s doing is spending a lot of money that could be better spent elsewhere:

This whole “born out of animosity” bit is just code language for it now being unconstitutional to hurt a gay persons feelings.

p0s3r on January 14, 2014 at 6:49 PM

Even mentioning the word “born” is, evidently, anti-gay, since gay couples can’t bear anything. The word must be stricken from polite conversation. Children merely appear … no one knows how they get here. Maybe the whole stork story will come back into fashion for the gay mafia, since the stork can visit gay couples the same way as normal couples?

The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,” U.S. District Court Judge Terence Kern wrote.

How that isn’t clear to everyone, I’ll never know.

And “Devil Baby”? What the heck is “Devil Baby” doing in a gay marriage post? That’s nutty, even for AP!

lol Notice in that vid just how many NY’ers aren’t even phased by a roving baby carriage zipping around the streets. Only in NY.

Limiting marriage based on familial relationships? Multiple partners? How are those not clear to you as important based on such logic? The day will come …watch when the court will rule that multiple spouses is legal. Then go talk to your priest on how you failed your religion.

If they want to discriminate against gay couples, they need to show some rational reason for doing so. “Moral disapproval” isn’t a rational reason

Any reason for discriminating is considered irrational if it’s against a group that people like alchemist18 like.

Any reason for discriminating is considered rational if it’s against a group that people like alchemist18 find icky. This is true regardless of how stupid his reasons are. If you think I’m kidding, read the stupid reasons he’ll surely assert.

Well I think it’s that it makes them uncomfortable both because it’s something that’s unfamiliar and that has been cast in a negative light for them, and because they don’t like the idea they were wrong about something so rather than really think about their beliefs and consider changing your mind it’s much easier and more comfortable to ignore facts that are contrary to your point.

true. it’s funny when gay marriage supporters say that “any two people should be allowed to get married.” why limit it to two? or people?

any limit on marriage is intolerant.

which means, marriage can be anything.

which means, the word has no meaning anymore because it can mean whatever anyone wants it to mean.

Even mentioning the word “born” is, evidently, anti-gay, since gay couples can’t bear anything. The word must be stricken from polite conversation. Children merely appear … no one knows how they get here. Maybe the whole stork story will come back into fashion for the gay mafia, since the stork can visit gay couples the same way as normal couples?

ThePrimordialOrderedPair on January 14, 2014 at 6:55 PM

God/nature is obviously homophobic… how dare He/it design humans so that only hetero couples could have a baby? soooo unfair!

I`m just asking here so don`t call me gay or accuse me of destroying the Republic: If the goal is to protect traditional marriage, why not go further and ban homosexuality and any privately held ceremony? Would such a move be consitutional?

Even mentioning the word “born” is, evidently, anti-gay, since gay couples can’t bear anything. The word must be stricken from polite conversation. Children merely appear … no one knows how they get here. Maybe the whole stork story will come back into fashion for the gay mafia, since the stork can visit gay couples the same way as normal couples?

…and because they don’t like the idea they were wrong about something so rather than really think about their beliefs and consider changing your mind it’s much easier and more comfortable to ignore facts that are contrary to your point.

alchemist19 on January 14, 2014 at 7:07 PM

Well said. Speaking of, are you still maintaining a position that homosexuality is inborn?

I`m just asking here so don`t call me gay or accuse me of destroying the Republic: If the goal is to protect traditional marriage, why not go further and ban homosexuality and any privately held ceremony? Would such a move be consitutional?

The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,” U.S. District Court Judge Terence Kern wrote.

How that isn’t clear to everyone, I’ll never know.

JetBoy on January 14, 2014 at 7:00 PM

How it isn’t clear to everyone, there’s a difference between the two genders, I’ll never know.

limiting marriage to opposite-sex couples

That’s the DEFINITION of marriage. Two guys, or two gals … that’s GAYRRIAGE.

Liberals have always sought to deny real differences between people. JetBoy is a conservative; what’s HIS excuse?

Disturbing. They want to pull the plug on family members or don’t value their own life, fine, but it’s so perverse for them to attack others for actually valuing their life here. I cannot understand a mentality that regards life as an inconvenience, rather than the gift it is.

As for the topic, this was inevitable. We all know how SCOTUS will rule, as well.

I love ya, man-but marriage is one man+one woman. Period.
Istrongly support civil unions for same sexers-but allowing a union of same to be called marriage is immoral and degenerate.
I will never acknowledge same sex(non) marriage.

I`m just asking here so don`t call me gay or accuse me of destroying the Republic: If the goal is to protect traditional marriage, why not go further and ban homosexuality and any privately held ceremony? Would such a move be consitutional?

ThePrez on January 14, 2014 at 7:10 PM

no, no one wants to do that. people can have whatever private ceremonies they want, i don’t care. i could have a ceremony to “marry” my laptop. (i love it and spend so much time with it…)

What were the Romans thinking when the Visigoths were coming over that hill?

Art Bell was on to something with the quickening.
Glenn Beck was on to something with the Overton Window.

“Previous civilizations have been overthrown from without by the incursion of barbarian hordes; our has dreamed up its own dissolution in the minds of its own intellectual elite. Not Bolshevism…not Nazism…not Fascism…none of these, history will record, was responsible for bringing down the darkness on out civilization, but Liberalism. A solvent rather than a precipitate, a sedative rather than a stimulant, a slough rather than a precipice; blurring the edges of truth, the definition of virtue, the shape of beauty; a cracked bell, a mist, a death wish…”

“a dying civilization…clutches at any novelty in art and literature, ready to accept and then almost at once reject whatever is new, no matter how perverse or abnormal…. We continue to insist that change is progress, self-indulgence is freedom, and novelty is originality. In these circumstances it is difficult to avoid the conclusion that Western man has decided to abolish himself, creating his own boredom out of his own affluence, his own vulnerability out of his own strength, his own impotence out of his own erotomania, himself blowing the trumpet that brings the walls of his own city tumbling down. Having convinced himself that he is too numerous, he labours with pill and scalpel and syringe to make himself fewer, thereby delivering himself the sooner into the hands of his enemies. At last having educated himself into imbecility and polluted and drugged himself into stupefaction, he keels over, a weary, battered old brontosaurus, and becomes extinct.”

It’s all good, this went down PRECISELY as I said it would here long ago.

I was a backer of civil unions because “equality” and I saw their point BUT not marriage b/c “religious freedom”….

but the Libertines on the issue ran over to their activist buddies on the left and said on their way “oh we want this but we are totes with you guys on x, y, and z…and we won’t let them attack Churches anyway and I want this”

Well the Libertine coalition got their pony using extra-democratic methods and the radicals are now attacking people of faith on matters of conscience….

CO played the same game on POT….

and I *am* game but don’t be assholes Libertines if we are to engage our every hedonism let’s engage ’em all….

This is how liberals do it. It’s painful to watch. I’m sure they have Justices, in every state, prepared to jump on this if they have the chance. They really know how to play the game and they’re doing a good job. My biggest problem with this is they’re doing the same thing they did with Roe V. Wade, they’re using the courts. It would probably take them an extra 5-10 years to use the legislature, but they just don’t have the patience. The problem with using the courts is that, sooner or later, things can be overturned. It’s like a never ending battle where, if they use the legislature, they’re generally finished.

Ironically, I do believe the vast majority of people would support civil unions. Liberals can’t settle for that they have to call it marriage. It really goes to show they don’t want a solution, they want an issue and that, for the Democrats, is always what it’s all about.

“Encouraging procreation” doesn’t fly if you’re not also excluding straight infertile couples from marriage and “encouraging mother/father households” doesn’t fly if you can’t show how banning gay marriage would actually encourage the formation of those households.

AP keeps writing this. As I’ve noted before, both issues are dealt with in What Is Marriage? Man and Woman: A Defense. What I’d like to see is a Hot Air blogger actually read the book and address it.

The authors submitted an amicus brief to SCOTUS. The libs never dealt with the arguments. They probably never bothered to read it, having already decided how they would rule. From Alito’s opinion it appeared that he had.

Look, we all know what is coming. The Supremes will legalize SSM across the nation. Then the REAL fun will start–the lawsuits against churches.

Someone jumped the gun in Utah, when they filed against the LDS church about 5 days after the Judge there ruled. They had forgotten to get permission of the named gay people there, so it was dropped and quickly hushed up. But many of the states that have legislatively legalized SSM have done so over objections of the gay lobby, since they ALSO granted (or tried to grant) an exemption to churches from being forced to participate in gay ceremonies. New Jersey and either Vermont or New Hampshire are in that boat.

Why would the gay lobby, who insists, INSISTS, mind you, that gay marriage is all about love and happiness and no on, least of all them, would EVER even dream of contemplating forcing religions to do SSM–why would they violently object to codifying exemptions for churches?

I mean, isn’t gay weddings all happiness and gay purity and kittens and such? Why, it has no negative impact on the rest of us! No one need worry! Except Phil Robertson, and anyone who is a Christian in business, of course, or might possibly think of homosexual activity as sinful–they will, no doubt, be forced to learn the error of their ways. The criminalization of opposition to whatever the gay lobby wants (unless you are Muslim, of course–then stone those hedonistic devils! Liberals will say nary a word!)

“Non discrimination” codes mean the end of free speech. Just ask Mark Steyn in Canada, and various pastors who have been jailed in various countries for reading the Bible.

Aren’t gay rights supporters just harmless, lovable, peaceable people? Who only fly off the handle and beat up old ladies with “Crosses of taunting?” Who are animals (hey, they claim they can’t control their instincts!) who can’t help but graffiti and terrorize their opponents?

I mean, what could possibly go wrong by enabling more Gay Rights victories?

I love ya, man-but marriage is one man+one woman. Period.
Istrongly support civil unions for same sexers-but allowing a union of same to be called marriage is immoral and degenerate.
I will never acknowledge same sex(non) marriage.

annoyinglittletwerp on January 14, 2014 at 7:18 PM

Love ya back twerpster <3

I'll just say, calling a union "marriage" isn't what's "immoral" and "degenerate". Those terms are best applied to the actual couples, and how they conduct themselves…and not what that union is called. AS always, I'm happy with the idea that the government gets out of marriage altogether. Leave "marriage" to religion, and make all secular state unions "civil unions".

Ironically, I do believe the vast majority of people would support civil unions. Liberals can’t settle for that they have to call it marriage. It really goes to show they don’t want a solution, they want an issue and that, for the Democrats, is always what it’s all about.

bflat879 on January 14, 2014 at 7:32 PM

Like any and all groups used by progs, gays are simply tools to be used to crush their enemies. When there are no more enemies, the useful idiots get the guns pointed on them. The twisted irony is that they are lining up with the same communists and fascists who would execute them in a heartbeat. And they won’t see it until it’s too late. At least for Christians, the reward of Heaven lies afterward. I cannot say the same for the willing lemmings.

no Joke they are invoking the XIVth because “Equal Protection” and hey SCotUS said ok to that, BUT every time they do this they are overriding the Xth b/c OK has a State Constitutional Amendment…

“but H15 SCotUS said it was ok…”

yeah yeah they did but see contrary to what SCotUS and the activists are pretending not every state’s marriage laws are 100% compatible with the others ANYWAY some need blood samples, some have waiting periods, some states allow first cousins to marry some don’t…

Don’t like the law keeping you from marrying your cousin?

JUST SUE BABY!

Why can’t a pair of cousins back home in Ohio get married? THEY ARE IN LOVE EQUAL EQUAL!

There’s either a sense of states having a Xth amendment or there is not. SCotUS is obliterating state law based on faulty reasoning there is no Federal Marriage amendment saying Gay Marriage is the Supreme rule of the land. Cousin law, blood tests, etc etc all state business as marriage is in fact historically a state business.

Reciprocity heretofore meant states could not force you to divorce if you were married under another state’s laws…..

This is bad precedent because it is giving a hyper drama queen activist class preferential treatment based on the Pop Culture’s preferences….

SCotUS SHOULD not that they will make an overt ruling on the Xth Amendment’s efficacy on ANY matter involving law for citizens going from state to state…

Can New York compel me to surrender or divest of a legal gun in Ohio?

If so why?

CO’s stoners did the same thing with empowering Eric “My People” Holder to have the sword of Damocles over stoner nation’s heads in the state of CO…

If CO can ignore Federal Laws and Regulations on Pot why can’t the State of Ohio ignore coal regs?

If the answer is “because the Obama admin will engage in law or regulatory fine enforcement” on one set and not the other…

Congratulations Libertine nation you just blew up the rule of law interacting with the will of the people…

The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,” U.S. District Court Judge Terence Kern wrote.

How that isn’t clear to everyone, I’ll never know.

JetBoy on January 14, 2014 at 7:00 PM

Now that we’re all riding the zeitgeist, how these courts continue to limit marriage to couples, I’ll never know.

Shouldn’t the Equal Protection Clause equally apply to trios? quadruples? Will these Courts ever get with the times?

By the way, I’m really looking forward to the next wave–legalized polygamy. Utah has a very, very compelling argument why they can ban that.

They cease to be a state once polygamy is legalized. Because, see, the state charter conditioned Utah’s statehood on banning polygamy forever. It’s written into the state constitution, and as far as I know is the only part of any constitution that cannot be amended–the amendment power of Utah’s constitution specifically forbids amending that section. If polygamy is legalized, then of necessity Utah ceases to be a state.

But the reasons behind banning polygamy fail under the same reasons why SSM is being allowed, despite alchemists attempts to explain otherwise. So it’s inevitable. And how can polygamy be legal everywhere except Utah?

By the way, the 14th amendment was in force back when people were being jailed and losing the right to vote because of their views on marriage. Didn’t protect the Mormons, I don’t see how it suddenly protects the gays.

I’m getting tired of saying it, but whatever. Ours has been an individual rights society, rather than a group rights society. This is why it is false to say that laws banning men from marrying men is a violation of equal protection. It would be unconstitutional to say that a gay man cannot marry a woman while allowing a non-gay man to marry a woman. It is NOT unconstitutional to ban men from marrying men because there is no discrimination between individuals here.

So one activist liberal judge once again overrides the will of the people. That ban passed with 75 % approval!!!!!! I’m fed up with this crap. Fed up with watching my country fall on its continued path of sin and rejection of God. I don’t know how he holds his wrath against us off.

So one activist liberal judge once again overrides the will of the people. That ban passed with 75 % approval!!!!!! I’m fed up with this crap. Fed up with watching my country fall on its continued path of sin and rejection of God. I don’t know how he holds his wrath against us off.

sadsushi on January 14, 2014 at 7:46 PM

Well since these judges and justices can find it seems magical invisible ink rights and laws that override the Bill of Rights it seems…

I think maybe we need to find a right for “divorce” on the state level…

“Oh look…the Post ACW Justices had it all wrong”…”uh the Soviet Union broke up into baby bells and by golly foreign precedence is just Ducky!”

So one activist liberal judge once again overrides the will of the people. That ban passed with 75 % approval!!!!!! I’m fed up with this crap. Fed up with watching my country fall on its continued path of sin and rejection of God. I don’t know how he holds his wrath against us off.

sadsushi on January 14, 2014 at 7:46 PM

Fred Phelps, is that you?

Since when is love and commitment a “rejection of God”? Not to mention, since when is the US Constitution a religious document enforcing religious doctrine…or more specifically, Evangelical/Fundamentalist Christian beliefs?

I really would like to hear why gays can get their rights via the 14th Amendment, passed in 1868, but the same 14th amendment didn’t protect the Mormons.

Have you seen what the Fed’s did to Mormons? They had property confiscated, they were jailed, their church was legally dissolved, in Idaho every Mormon lost the right to vote (Upheld 9-0 by the Supreme Court), women as a whole were disenfranchised (Utah women had the right to vote and it was taken away. So much for the liberal idea ‘we never take away rights once given! ‘ Tell that to the Mormons)
In court Mormons lost the privilege of spousal immunity (Preventing your spouse from being compelled to testify against you), people were being hunted and jailed by federal judges who had their mistresses on the bench with them (not their wives, their mistresses).

All of the above actions took place after the 14th amendment. And Utah was a territory at the time, so no issues about incorporation against the state–this was direct federal rule. It didn’t stop the feds at all.

If all of that was legal–and the Supremes held it was –then why do gays get to force the rest of us to dance to their puppet strings? And since all of that was legal, you wonder why some of us worry about being on the “wrong side” of federal marriage law? All of this will be back, this time against those people who do not accept gay marriage, the new preferred marriage state of the feds.